H1B

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Contents

Overview

H-1B is a non-immigrant visa that allows U.S employers to temporarily employ foreign nationals in a specialty occupation. A specialty occupation is that which requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations. H-1B visas are issued for duration of 3 years and an individual can be on H-1B status for a maximum period of 6 years. Exceptions to the maximum limit do exist if the individual’s green card process has been pending for at least 1 year. The dependents (spouse and children’s under 21 years of age) of the H-1B holders can apply for H-4 non-immigrant visa. H-1B and H4 visa holders with a valid visa (stamped on the passport) can travel in and out of USA with out any trouble.

How to apply for H-1B visa?

H-1B status requires a sponsoring U.S. employer. The employer must file a labor condition application (LCA) with the Department of Labor attesting to several items, including payment of prevailing wages for the job position and the working conditions offered. The employer must then file the certified LCA with a Form I-129 petition along with required application fee with the U.S. Citizenship and Immigration Service, USCIS. An individual can apply for a H-1B visa at the U.S embassy with the approved Form I-129 petition along with various other documents like Completed Non-immigration Visa Application Form DS-156, Form DS-157, Employment Verification letter and various other supporting documents and application fees. For a detailed list of the documents for the visa application and the procedure for applying for the visa, you should touch base with the nearest U.S. Embassy. The entire process could take few months and hence the employer and the individual should plan this entire process ahead of time.

Ensuring the petition is properly filed

   * Complete all sections of the Form I-129 petition, including the H Classification Supplement to Form I-129 (pages 8 and 9 of Form I-129) and the H-1B Data Collection and Filing Fee Exemption Supplement (pages 13 through 15). 
         o Original signatures, preferably in blue ink, are required on each form. 
   * Include a signed check or money order with the correct fee amount.
   * Ensure that all required documentation and evidence is submitted with the petition at the time of filing. 

Note: It is your responsibility to ensure that Form I-129 is completed accurately. Failure to complete Form I-129 with the correct information and provide the required fees or documentation may result in the rejection or denial of the H-1B petition.

Additionally, be sure to file the petition at the correct USCIS Service Center. We will reject all H-1B petitions filed at the wrong location.

Where to send the application

You must file your petition at the correct Service Center depending on your jurisdiction. We have established specific mailing addresses for purposes of identification and processing of H-1B cap-subject cases.

To determine which jurisdiction you are in, see the link to the right for H-1B filing locations.

Note: A separate mailing address has been established for certain types of educational or nonprofit organizations which file H-1B petitions on behalf of beneficiaries that are not counted against the H-1B numerical limitations.

Please read the filing instructions very carefully. If you file your petition incorrectly, we will reject it. Rejected petitions will not retain a filing date.

When to apply for H-1B petition?

USCIS accepts H-1B petitions anytime of the year. Due to the annual limits for H-1B visas per year and due to the high demands for the H-1B visas. The employers have to plan diligently to apply for H-1B petitions so that they have a better chance of getting the H-1B petition approved. USCIS starts accepting H-1B petitions on the first working day of April so that it can be counted against the current FY quota. For example if an employer wants to employ a foreign national for a specialty occupation in FY 2008 (any time between Oct 1, 2008 and Sep 30, 2009), then they have to file for H-1B petition on Apr 1, 2008). In recent years USCIS received far more H-1B petitions than the quota limit on the very first day when the quota is opened in April. USCIS normally stops accepting petitions (those counted against quota) when they receive more applications than the quota limit. Since in recent times USCIS received far more petition applications on the very first day, they adopted a random selection process (called lottery) to allot H-1B visas.

Is there an annual limit on the number of H-1B visas per year?

The current law limits the number of aliens who may be issued a visa or otherwise provided H-1B status to 65,000 (The numerical limitation was temporarily raised to 195,000 in FY2001, FY2002 and FY2003). The financial year begins on October 1. In addition to the 65,000 annual limits, currently 20,000 more H-1B visas are allowed for foreign nationals who graduate from U.S universities with a Masters of higher degree. Jobs with certain employers like universities and non-profit research facilities are exempted from the annual H-1B numerical limits. H-1B renewals beyond the initial 3 years are not counted towards the annual limits. Transfers among employers only count when changing jobs from an employer exempt from the limits (academia or research) to one that is not exempt.


How long can an alien be in H-1B status?

Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain aliens may obtain an extension of H-1B status beyond the 6-year maximum period, when: 1. 365 days or more have passed since the filing of labor certification (Form ETA 750) that is required for Employment-Based green card process. An alien is eligible for extension of H-1B status in 1-year increments. Worst case an alien should start his/her green card process much before his/her 6th year on H-1B status begins. 2. An approved Employment-Based immigrant petition (I-140) qualifies an alien to get a 3-year extension instead of 1-year extension mentioned above.

Can an H-1B alien work for any employer?

H-1B aliens may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules (e.g., Department of Labor rules) are followed. H-1B aliens may work for more than one U.S. employer, but must have a Form I-129 petition approved by each employer. An alien may change H-1B employers without affecting status, but the new H-1B employer must file a new Form I-129 petition for the alien before he or she begins working for the new employer. The merger or sale of an H-1B employer’s business will not affect the alien’s status in many instances. However, if the change means that the alien is working in a capacity other than the specialty occupation for which they petitioned, it is a status violation. An H-1B alien may work in full or part-time employment and remain in status. An H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.

== Can an immigrant hold a part time H1 on W2 and work part time for another company on 1099/W2 on EAD? The immigrant cannot remain in H1b status under this scenario. If you are working for a company with an EAD in any capacity (full-time or part-time or whatever), then you do *not* have a valid H-1B petition for that second company. That automatically means you have violated the conditions of the H-1B status under which you were admitted into the US - and thus you have fallen out of H-1B status. Legally, you can continue to work for both as long as you have a valid EAD, but you must be aware that you are no longer in H1B status (and any dependents are also no longer in H4 status as a result).

Can an H-1B alien immigrate permanently to U.S?

Even though the H-1B visa is a non-immigrant visa, H-1B visa is a dual intent visa and hence an H-1B alien can apply for and obtain an Employment Based Green Card through a sponsoring employer (not necessarily the same H-1B sponsoring employer) and immigrate permanently to U.S.

What happens to H-1B alien's legal status when he/she gets laid off?

An H-1B alien’s legal status is directly linked to his current job, in the event the alien gets laid off then he/she has to leave U.S immediately. There is a gray area about how long an individual can legally stay in U.S after getting laid off, do consult with an immigration attorney to know your individual options. The H-1B alien can avoid leaving the country by immediately finding another employer that is willing to sponsor for H-1B and the new employer file for a H-1B transfer with the USCIS. An employer however has the legal obligation to pay for the return transportation for the laid-off H-1B alien.

Can a H-1B alien switch employers?

A H-1B alien can switch employers provided the new employer is willing to sponsor a H-1B petition. The new employer should apply for a H-1B petition. The H-1B alien can start working for the new employer once the employer receives the receipts from USICS for the H-1B petition.

What can the dependents of H-1B alien do in the U.S?

Dependents (spouse and children’s under 21 years of age) of H-1B alien are eligible to get H-4 visa. The dependents can apply for H-4 visa at the U.S Embassy with all the required documents. An H-4 visa holder can legally stay in U.S as long as the H-1B visa holder remains in legal status. A H-4 visa holder is not eligible for Social Security Number (SSN) and is also not eligible to work in U.S. However a H-4 visa holder can obtain a drivers license and can attend school in U.S. Certain states in U.S have restrictions on providing drivers license to H-4 visa holders. Also certain states require H-4 visa holders to pay out of state tuition at school. H-4 visa holders with a valid visa can travel in and out of U.S with out any issues. For filing income tax dependents need to use an Individual Taxpayer Identification Number (ITIN) in palce of SSN on the tax forms. ITIN is a tax processing number issued by the Internal Revenue Service.

What should be done when an H1B employer misuses the terms of his petition?

There can be many ways by which an employer can misuse the terms of his H1B petition for an employee.

Some of them are:
1. Demands H1B Filing Fee from the employee.
2. Places the employee on "bench" with no work and does not pay any salary.

When an employer tries to misuse an employee, the employee has the benefit of complaining to the Department of Labor via the WH-4 form [1]. The filing of the WH-4 form will bring the employee's status to current (he is not unlawful anymore due to the bench issue).

The DOL will conduct a full fledged investigation (without revealing the employee's name anywhere) including court cases. The DOL will be in a position to get the back wages for the employee for the bench period.

The DOL will require evidence of all types of communication the employee had with the employer (bank statements, email records etc). The employee should always retain email evidence.

The benefit for the employee is that it costs nothing and the DOL does all the investigation on the employee's behalf. There is a DOL investigator assigned to you who will work closely with you over the course of the investigation. The investigation can take a few months but the prospect of getting your status to be current is very attractive.

Since the status will be current (by the filing of WH-4), the employee is free to transfer his H1B petition to another employer. It is critical that the employee file the WH4 form. It costs nothing and YOU DO NOT NEED to hire a lawyer. The DOL investigator is sufficient and helpful.

Examples of DOL investigation with back wages and benching issues: [2] [3] [4]

Relevant Links

Petition for Immigrant Worker, Form I-129

Non-immigration Visa Application, Form DS-156

Supplemental Nonimmigrant Visa Application, Form DS-157

labor condition application (LCA)

Department of Labor

U.S embassy

Good H-1B discussion forum

H-1B Cap

DOL's tool to help employers and others understand how to comply with requirements under the H-1B visa program

Further info and discussions

Alberta welcomes h1-bs

H1 stamping post

H-1b extension posts

H-1b Masters quota

Valid H-1b holders turned back at POE

Laid off: all questions and discussions

H1 approved visa reopened

All H1 transfer posts here

All H1 to H4/H4 to H1 posts here
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